Civil Rights
Jun. 22, 2002
Tied to the Past
Forum Column - By Raymond C. Marshall, Joanne Leah Castella and Kristen A. Palumbo - Ever since the promise of 40 acres and a mule, the idea of reparations for African-American slaves and their descendants has persisted. Until recently, supporters of slavery reparations have focused on efforts to secure reparations from the federal government through the political process. Thus far, these efforts have been unsuccessful.
By Raymond C. Marshall, Joanne Leah Castella and Kristen A. Palumbo
Ever since the promise of 40 acres and a mule, the idea of reparations for African-American slaves and their descendants has persisted. Until recently, supporters of slavery reparations have focused on efforts to secure reparations from the federal government through the political process. Thus far, these efforts have been unsuccessful.
Some supporters have brought the fight to the courthouse, seeking, among other things, monetary damages from private companies that allegedly profited from slavery. In addition to various forms of monetary damages, the plaintiffs also seek the appointment of an independent historical commission to serve as a depository for corporate records related to slavery.
The first such lawsuit was filed in the Eastern District of New York on March 26 and brought on behalf of Deadria Farmer-Paellman and all other people similarly situated, namely, all African-American descendants of slaves. Farmer-Paellman v. FleetBoston Financial Corp., 1-02-01862 (E.D.N.Y., filed March 26, 2002). While this lawsuit only names three defendants, it leaves room to name an additional 100 corporate defendants.
The suit likely will be only the first in a series of similar actions to be filed in the near future. Indeed, the Reparations Coordinating Committee, a group of lawyers, academics and civil rights activists, including Harvard law professor Charles Ogletree and author and activist Randall Robinson, has been planning to file class actions seeking restitution for slaves and their descendants from private corporations as well as from the federal government.
Although numerous groups have sued for reparations in the past, including Korean "comfort women," Holocaust victims and prisoners of war, those who have been most successful have done so with government assistance. The U.S. government, for example, compensated Japanese-Americans interned in concentration camps during World War II through the Civil Liberties Act of 1988, which awarded $20,000 to more than 100,000 Japanese-Americans. See 50 U.S.C. Section 1989.
Similarly, Nazi-era slave laborers received $5 billion from the German government, as well as from businesses and religious organizations, with the support and assistance of the U.S. government.
Although the use of the representative branches of government may have worked for these groups, thus far it has proved unsuccessful for African-Americans. The African-American Reparations Commission Act, which proposes a study of slavery and its effects and a recommendation of appropriate remedies, has failed to garner support from Congress every year since 1989. Lawsuits against the U.S. government for damages for the government-sanctioned enslavement of Africans and resulting discrimination have been dismissed before ever getting to the merits.
In 1999, however, nearly 1,000 African-American farmers were able to achieve a multimillion-dollar settlement of a class action charging the U.S. Department of Agriculture with a systematic and discriminatory policy toward African-American farmers of unfairly denying or delaying loans and charging African-American farmers higher interest rates than those given to white farmers.
Otherwise, lawsuits and legislation seeking compensation for almost 250 years of legalized slavery and its aftereffects have gone nowhere. The recent legal actions against private corporations (and the ones likely to follow) will face difficult obstacles, as well.
While most reparations demands are made of state and federal governments, the targeting of private companies and institutions for compensation is not an entirely new phenomenon. In addition to receiving compensation from the German government, survivors of the Holocaust received in excess of $5 million in reparations for their Nazi-era slave labor from companies such as Volkswagen, Siemens, Deutsche Bank and DaimlerChrysler and another $5 million from Germany's Evangelical Church.
In addition to the three companies named in the lawsuit recently filed in New York, potential defendants in suits seeking slavery reparations include companies and successors of companies that profited directly from slave labor and the actual trading in slaves and those that profited indirectly from the products of slave labor before emancipation in the 1860s and another century of discrimination and institutional racism.
The potential targets include companies and their successors that allegedly were founded by those who made their fortunes in the slave trade. This includes some of our country's leading educational institutions, like Yale University, Brown University and Harvard Law School.
Shipping companies and railroad companies that either owned slaves and profited from their labor or profited from the transportation of slaves may be included. Businesses involved in the coal, cotton, sugar, rice and tobacco industries, all of which benefited directly by using unpaid slave labor in production, are also likely defendants.
The most frequently mentioned targets, however, are banks and insurance companies. Claims against banks may exist based on their financing of companies involved in the production of goods produced by slave labor and the importation of slaves.
Claims could be brought against insurance companies based on the profits that they earned insuring Southern farmers against the deaths of their slaves or insuring businesses involved in the shipment of slaves.
For example, in March 2000, Aetna Insurance Co. uncovered that it has profited from slavery by insuring farmers against the deaths of their slaves. Shortly after this discovery, Aetna issued an apology but declined requests that it establish a multimillion-dollar trust for minority education and business.
Particularly helpful to the claims against insurance companies is a recently passed California law that requires insurance companies to disclose details about slave policies that either they, or any insurance companies that they subsequently acquired, wrote in the 1860s or before. See Insurance Code Sections 13810 to 13813.
Proponents of slavery reparations argue that these lawsuits are important because the legacy of slavery still exists as evidenced by present-day racial disparities and discrimination in health care, education, employment and the criminal justice system. Supporters argue that the only way to remedy the problem is by a shift in wealth in the form of monetary awards. In addition, proponents want the corporations and the government to accept responsibility for their actions and to acknowledge that slavery continues to have consequences today.
Even those who agree with these underlying propositions and do not argue with the merits of the claims fear that any award only will lead to further divisiveness, not only between African-Americans and whites but also within the African-American community. Those who oppose the lawsuits point to the problem of determining the appropriate remedy.
Should it be cash payments to individuals in the form of unpaid wages, land transfers or funded initiatives to improve education and economic development for minorities? If the remedy is in the form of a monetary award, how can a court effectively put a limit on the amount that the defendants will have to pay?
In addition, those who oppose resolving the issue through litigation question who should receive the benefit of these remedies. Because there are no slaves living today, unlike the Holocaust victims and the Japanese-American internees, how will a court determine who should receive compensation and how much each person should receive?
Not all African-Americans were slaves before 1865. How will the courts deal with those who did not come from slave families or who came to the United States after the abolition of slavery who still suffer the same discrimination? Will each of the plaintiffs be required to trace their ancestry back to a particular slave? And how will this be accomplished? What about other minorities who face a lot of the same problems today, like Native Americans, Latinos and Asians?
Thus, although opponents of these lawsuits don't disagree that the legacy of slavery still exists and that much work needs to be done to remedy the problem, they argue that private lawsuits are not an effective way to address the issue. They point to questions of proof that will only serve to detract from any meaningful solution.
They suggest avoiding litigation and the obstacles that it presents and instead implementing a more global, institutional solution - a legislative package that recognizes and effectively addresses the very real problems that exist today as a result of the enslavement of African-Americans.
No matter which side you are on, these lawsuits have implications for each of the potential defendants that go well beyond any judgment in a lawsuit. If litigation is the means by which the problem is addressed, the battle likely will be a long and drawn-out one. Negative publicity and possible boycotts may force the defendant companies to settle.
Raymond C. Marshall, Joanne Leah Castella and Kristen A. Palumbo are attorneys at McCutchen Doyle Brown & Enersen in San Francisco.
Columnist
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com